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Chapter 4: Beginning at the Beginning

Aboriginal peoples, of course, did not go around talking about their rights; mostly, they spoke in a discourse of responsibilities and respect. But that discourse was circulated among themselves. When others came and established—or forced—dominance, it became relevant to speak of rights as a way of negotiating relations.

—Historian Peter Kulchyski, 1994, Unjust Relations: Aboriginal Rights in Canadian Courts.

Regardless of how the inhabitants themselves perceived their connections with the land, in every case a physical and economic relationship necessarily existed. Quite simply, when the English arrived, these people were already there, using lands in accordance with their own needs and their own ways of life, as people everywhere do.

—Legal scholar Kent McNeil, 1989, Common Law Aboriginal Title.

Aboriginal Peoples Were Here

When Britain became engaged in the colonization of the Americas, British legal rules were already in place that addressed several major questions which arose whenever British settlers established themselves in another territory. The “not-Christian enough” rationale, developed to cope with the Irish situation, became codified in law in Calvin’s Case in 1608, when Britain’s Chief Justice Coke articulated what has become known as the infidel rule: “if a Christian King should conquer a kingdom of an infidel, and bring them under his subjection, there ipso facto the laws of the infidels are abrogated, for that they be not only against Christianity, but against the law of God and of nature.”¹

A memorandum of the Privy Council of Great Britain in 1722 consolidated imperial law by setting out rules for establishing British sovereignty in two possible situations. The first option, alternatively referred to as the doctrine of discovery, or the doctrine of occupation, or the doctrine of settlement, was to be applied in circumstances where the land discovered was terra nullius— uninhabited by human beings.² The second option, the doctrine of conquest, was to be applied where Indigenous populations were encountered.

In the case of terra nullius, Britain simply proclaimed sovereignty by virtue of discovery and British law became, automatically, the law of the land. Where Indigenous populations were found inhabiting the desired land, the law required that British sovereignty had first to be won by military conquest, or achieved through the negotiation of treaties, before colonial law could be superimposed.

Of course, Britain never had colonized and never would colonize an uninhabited land. Therefore, the doctrine of discovery/occupation/settlement based in the notion of terra nullius was never concretely applied “on the ground.” Rather, already inhabited nations were simply legally deemed to be uninhabited if the people were not Christian, not agricultural, not commercial, not “sufficiently evolved” or simply in the way. In British Columbia, the doctrine of terra nullius has historically legitimized the colonial government’s failure to enter into treaties with First Nations. The application of the doctrine of conquest to First Nations in British Columbia, which would have required recognition of the fact of their prior occupation, and their status as human beings, was available within the confines of British imperial law but was rejected by colonial governments in British Columbia. When Aboriginal people say today that they have had to go to court to prove they exist, they are speaking not just poetically, but also literally.

Oh, What a Tangled Web We Weave When First We Practice to Deceive…

Ordinarily, we think of language as describing a fact or a state of affairs…but a special capacity which is particularly inherent in the law makes things true simply by saying them…. This power is of course the attribute of judges and judicial decisions, among others. The texts of the law are thus quintessentially texts which produce their own effects.

—Sociologist Pierre Bourdieu, 1987, The Force of Law: Towards a Sociology of the Juridical Field.

The early history of British imperialism and its legal expressions constitute the beginning—“the first step in the intentional construction of meaning”—of the story which law itself tells about British and Canadian relations with First Nations in British Columbia. In law’s imagination, a fundamental inequality was evident and established at the first moment of contact. This hierarchical relationship forms the cornerstone of the legal relations between Aboriginal peoples and Canadian governments, and is at the heart of each and every case of land rights litigation. It constitutes the foundational principles upon which the architecture of the Canadian state is built: the ultimate power of the British Crown to assert its will through simply declaring its sovereignty over foreign lands and peoples, supported, if necessary, by armed force; the fundamental relationship of Euro-Canadian domination and Aboriginal subordination;³ and, the protection and advancement of the interests of the wealthy and the powerful classes of colonial society.

In these first moments in the story law tells us—in its assertion of terra nullius—we see the central role played by abstraction and theory in western law and culture: the world is conceived, and acted upon, as if reality can simply be conjured up in whatever form suits the desire of the powerful at the moment.⁴ Within this ideology, human beings can be considered, legally, not to exist, and can be treated accordingly. At this most fundamental, common sense level, a study of British and Canadian law in relation to Aboriginal title and rights therefore begins not “on the ground,” in concrete observations about different peoples’ diverse ways of life, but rather “in the air,” in abstract, imagined theory. Hovering, like the sovereign, who embodies this abstraction, over the land. In the practices legitimized by this initiatory unleashing of the “will to power” we can see the antiquity of what continues to be a fundamental contradiction, paradox, or deceit in British and Canadian culture: an enduring abstract philosophical commitment to humanism—defined at the most elementary level as the fundamental equality of all human beings—co-exists with an enduring concrete material practice of inequality, and the domination of one group of people by another. It is within this space between the ideal and the real that ideologies of justification are constructed in law, government, imagination, and popular culture. This is the space wherein lies are legitimized and truths silenced. In the histories of colonial laws we can see both the mendacity and the crudeness of the original lie of European supremacy, and the shockingly unsophisticated nature of the edifice built upon it.

This same space between theory and practice, between avowed principles and lived experience, between the letter and the practice of the law, is one of the sites where Aboriginal peoples historically and contemporarily mount their resistance struggles. First Nations repeatedly expose both the failure of colonial law to obey itself in relation to Aboriginal peoples,⁵ and the presence of systemic racial and cultural bias in the justice system.⁶ When government policies and practices that systematically discriminate are juxtaposed with the Canadian state’s formal commitment to democratic equality, hypocrisy is revealed.⁷ In these ways, Aboriginal peoples strike repeated blows to the heart of Canada’s liberal self-image and international personality.

So begins the long dance we call Aboriginal/nonAboriginal relations in Canada: a tango of domination and subordination, of resistance and repression, of compromise and intransigence, of accommodation and denial, of life and death.

Eclecticism

The English, in fact, were eclectic in their choice of aims and methods; at one time or another they tried almost everything…. Late-comers to the New World, they had an abundance of precedents from which to choose. No other colonial empire employed so wide a range of legal devices in establishing settlements, or allowed so many diverse forms of social, religious, and economic organization.

Many factors contributed to this diversity: a habit of eclectic borrowing; differences in time, place, and circumstance; differences in personality and purpose; and the absence of sustained interest and continuous effective control by the central government.

—Historian K. R. Andrews, 1973, in The Westward Enterprise: English Activities in Ireland, the Atlantic and America, 1480-1650.

In Canada, France preceded England in settlement, and entered into treaties with the Micmac, Maliseets, Montagnaix-Naskapi, Huron and Abenaki to secure them as allies against both the Iroquois and the English. Throughout the seventeenth century, numerous agreements were entered into between and among Aboriginal peoples and the French and English. Many of these treaties were verbal agreements, solemnized through assembly and gift exchange, and symbolized by, for example, wampum belts. Other treaties were written in French, and later, English, by colonial representatives, and signed by themselves and by Aboriginal representatives.

Before the arrival of Europeans, different Aboriginal Nations had political and economic agreements with each other regarding trade and commerce, war and peace. These initially served as models for the treaties they entered into with Europeans.⁸ An important characteristic of early Indian-European treaty-making was that it conformed to Aboriginal political practices more than to European ones, reflecting the real balance of power that existed when Aboriginal peoples formed both the vast majority of the population, and possessed the necessary knowledge and skills to live in the North American environment.⁹ Current legal and political conflicts revolve around issues of competing interpretations of the intentions of the original treaty-makers, the obligations of governments that arise out of the treaties, and whether these obligations have been honoured or not.

In some cases, Aboriginal peoples, relying primarily on oral histories, argue that their ancestors entered into “peace and friendship” agreements with Europeans that allowed the newcomers certain rights to travel and harvest resources. These treaties, they say, were never understood to be final surrenders of lands, rights or political sovereignty. Rather, they were agreements that would be renegotiated as needed to respond to changing conditions, and renewed regularly through deliberations and ceremonies like the ones from which they had originally emerged.

Against this, the Crown consistently argues that treaties should only be considered within the context of British law, without regard for Aboriginal legal practices at the time the treaties were made. It claims that the treaties are permanent and binding legal land cessions that also yield political sovereignty; and that the money paid to Indians constituted a trade of money for land, not lease or rental fees, or a toll, or a ceremonial exchange of gifts.

A significant challenge to the Crown’s position also emerges from within British and Canadian law and centres on debates about the nature of informed consent. Contractual agreements like treaties are only valid if both parties were fully aware of the terms and the consequences of the contract they entered into. In some cases, Aboriginal representatives are asking courts to consider whether or not Crown representatives made their interpretation of the meaning of treaties clear, verbally, to the Aboriginal peoples they were negotiating with. If not, and if the Aboriginal signatories to the treaties were not English speakers, readers, or writers, what is the legality of those treaties signed with an “X” scrawled next to an anglicized Aboriginal name printed by the governments’ treaty negotiators?

Imperialist Competitions in Terra Nullius

Englishman, although you have conquered the French, you have not yet conquered us. We are not your slaves. These lakes, these woods and mountains, were left to us by our ancestors…they are our inheritance; and we will part with them to none. Your nation supposes that we, like the white people, cannot live without bread, and pork and beef! But, you ought to know, that He, the Great Spirit and Master of Life, has provided food for us, in these spacious lakes, and on these woody mountains.

—Chippewa leader Minivavana, to an English trader, at Michilimackinac, Fall 1761.¹⁰

By the Treaty of Utrecht in 1713, France ceded control over the Canadian Maritime regions to England, while retaining Cape Breton Island, Ile St. Jean and miscellaneous islands in the Gulf of St. Lawrence. In 1759 the British captured Quebec after seven years of war, and the subsequent Peace of Paris, signed in 1760, temporarily sorted out disputes between France, England and Spain. France ceded all its remaining territories in Canada and its territories east of the Mississippi River. Spain ceded Florida to Britain, but retained its territories west of the Mississippi captured from France in 1759. As conflicts between colonial powers intensified, a pattern developed that would continue into the present: European powers, and later federal and provincial governments, engaged in disputes with each other over lands and resources, that excluded Aboriginal peoples. As if they didn’t exist.

Imperialist Nostalgia¹¹ in Terra Nullius

“In the beginning all the world was America.”

—Political philosopher John Locke, 1672.¹²

While the Treaty of Utrecht and the Peace of Paris were being negotiated and signed, eighteenth-century British society was undergoing rapid industrialization and urbanization. Members of the new middle and professional classes became concerned about the human costs of this process, represented by the plight of former peasants who increasingly formed impoverished rural and urban populations. Europeans increasingly looked to science for guidance in social policy at home, and for rationalizations of colonial policies abroad. Various treatises emerged that claimed to explain the whole history of all humankind in systematic and coherent ways, and that all began with theories about human origins. Although available information about Aboriginal ways of life was principally limited to explorers’ and traders’ idiosyncratic and unsystematic records, the authors of the “grand theories” of Enlightenment Europe usually began with an evocation of so-called “primitive life in the New World,” meant to illustrate “raw human nature” and “original human society.” For romantics like Jean Jacques Rousseau, the “state of nature” was to be found in a simple Garden of Eden, and Indigenous peoples in America, imagined as “noble savages,” provided Europeans, steeped in the popular “common sense” of evolutionism, with appealing fantasies of their own primitive origins.

At the opposite extreme, for philosophers like Thomas Hobbes, the “state of nature” was an instinct-driven war of all against all. The establishment of society, and collective survival, depended upon the imposition of a sovereign’s power and government to contain and control an essentially competitive and aggressive “human nature.” The Hobbesian “state of nature” that he, too, claimed was being lived in eighteenth century Indigenous societies in the Americas, was one of constant warfare, an absence of law or government, and a life that was “nasty, brutish and short.” Whatever the western rendition of “primitive life,” Aboriginal peoples occupied one or another of these “savage slots” in the European imagination: noble child of harmonious nature, or dangerous child of animal instinct.¹³ In whichever rendition, Aboriginal peoples were used as a tabula rasa upon which Europeans could project whatever theoretical or cultural fashion seized the fantasy of the day. In both renditions, the reality of the ways of life, lived experiences and self representations of Aboriginal peoples are sacrificed to the European imagination. These “grand theories” competed with each other for acceptance amongst professional and popular audiences.

Enough and As Good

John Locke is usually identified as the most significant political theorist of this imperial era in Britain. Locke gathered together arguments circulating during the early seventeenth century and set them out in theories that would serve many of the later legal and political justifications of European seizure of property in North America.¹⁴ Locke, in the fashion of the times, argued that Aboriginal peoples lived in a pre-political state of nature representative of the first stage in universal human evolutionary development. Important characteristics of this early developmental phase included a hunting and gathering economy with no perception of established systems of property or government. Europe correspondingly represented the most advanced stage of evolutionary development. This was proven by the practice of agriculture; the existence of a legally codified system of property with written laws; a bureaucratic government; and a capitalist economy in which all exchanges of commodities in the market place between people are conducted through the common medium of money, the value of which is ultimately guaranteed by the state. The sovereign’s image stamped on coinage symbolically represents the presence of the hovering sovereign mediating every monetary exchange between citizens.

Locke went on to theorize that Aboriginal peoples therefore had property rights only “in the products of their labour: the fruit they gather, the deer they catch and the corn they pick.” In this they are governed by a “natural law,” Locke mused, that says each individual may appropriate what nature offers up without consultation with, or consent by, anyone else “as long as there is enough and as good left in common for others.” Locke reasoned that Europeans would increase the productivity of the land through agriculture and were therefore justified in appropriating Aboriginal lands without consent. Since this process was governed by the “natural law” of evolutionary development, if Aboriginal peoples inhibited European settlement, they would be in violation of natural law and could justifiably be eliminated. Philosopher James Tully concludes that, if Locke had recognized Aboriginal forms of property, and Aboriginal peoples as equal to Europeans, then “settlement in America would have been illegitimate by his own criteria of ‘enough and as good,’ and consent would have been required.”¹⁵

Nation to Nation. Words to Paper.

And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.

—“The Indian Provisions,” Royal Proclamation of 1763.¹⁶

The prevailing conditions in eastern Canada during the early 1760s were very complex,¹⁷ and formed the historical context in which the Royal Proclamation of 1763—a document that continues to be the subject of legal and political debates today—was issued. The British were faced with a number of problems. Their relationship with Indian nations who had been allies of the French was precarious. During the Seven Years War between Britain and France there had been active competition for Indian allies, and British army commanders in the field had been generous in their purchases of furs and exchanges of ammunition. After the war, London cut back these funds considerably and field commanders found themselves unable to honour commitments they had previously made. Entrepreneurial settlers and fur traders were making independent incursions on Indian lands and resources, impeding the development of the Crown monopoly. On the international front, Britain’s hegemony in North America was still threatened by the Russians from the north, and the Spanish from the southwest. The Royal Proclamation of 1763 attempted to address all of these issues.

Competing interpretations of the historical, legal and political implications of the Royal Proclamation of 1763 have occupied a central place in Aboriginal title and rights discourse and litigation over the past two centuries. A key debate surrounds the question of whether or not the Royal Proclamation should be interpreted as having recognized already existing Aboriginal rights, or as having created these rights. The former, which has since come to be known as the “inherent rights” position, is based on the assumption that Aboriginal rights today flow continuously from the sovereignty of nations that pre-existed European colonization. The latter—the “delegated rights” position—argues that, in law, no rights can exist except those created by the will of the sovereign. Hence, contemporary Aboriginal rights could only be those that a sovereign, or a court, or a parliament chooses to assign. Such rights would always be based in the desires of these bodies, and not in Indigenous history. And what the sovereign creates, the sovereign can also destroy or dismiss, at his pleasure.

Analysts agree, however, on some points. The Royal Proclamation differentiated Indian title to land in North America from non-Indian title in five significant ways. First, it reflected the fact that, in 1763, the Crown understood that it must at least formally recognize the legitimacy of, and negotiate on equal political grounds with, “Indian Nations.” The Royal Proclamation is guided by the doctrine of conquest set out in the Memorandum of the Privy Council in 1722.

Second, under the Proclamation, Indian title is defined as being collectively or communally, not individually, held. Furthermore, this title is limited to use rights, like hunting and fishing, that are comparable to perpetual leases rather than to ownership. The uses in question must be only those practiced before European arrival. The Royal Proclamation therefore acknowledges First Nations as having some form of interest in their lands and resources. Whether, by legal interpretations, or cultural assumptions, this “Indian title” is of equal value to “Crown title,” or is some less valued form of property right that constitutes “a burden” on the Crown’s title, is a subject of ongoing controversy. Third, the Proclamation dictates that Indian title can be only be transferred to the Crown. A number of debates have arisen concerning both the intent and the consequences of this clause. Many historians have argued that the insertion of this clause was primarily motivated by a humanitarian, paternalistic concern to protect Indians from unscrupulous frontier land speculators. Others argue that this clause reflects a power struggle between the Crown as state, and corporate and private interests, for monopoly over lands and resources. Still others focus on competition between international imperial interests and those of the emerging local, colonial governments.

Fourth, the Proclamation identifies Indians as “Nations or Tribes”¹⁸ and guarantees Indians the protection of the Crown. This would later come to be expressed as a “fiduciary duty.” Ongoing debates involve whether or not this fiduciary duty and the obligations it entails should be interpreted as resulting from a negotiated, trust-like agreement between equal parties, or as reflecting a relationship of dependency analogous to the parent/child relationship which is also classified, in law, as a “fiduciary duty.”

Fifth, the Royal Proclamation requires that Indigenous land rights can only be surrendered at a public assembly at which Indians give their consent. This issue comes up particularly in treaty litigation where some Aboriginal claimants argue that, whatever negotiations and agreements are claimed by the Crown to have been reached with their ancestors, the representatives who signed the treaties had not been mandated to do so by their constituencies, and there was insufficient knowledge of and/or participation by the required majority of the Indigenous land holders to render the treaty legal.

In these interpretations, the possibility that Aboriginal peoples may not have wanted to sell, cede or by treaty give sovereignty or lands to anyone is not provided for in the written words of the Royal Proclamation of 1763. Nor is the possibility entertained that Aboriginal sovereignty could remain dominant, or could co-exist with Crown sovereignty.

Another significant debate about the Royal Proclamation of 1763 centres on the degree to which both British and Aboriginal intentions and understandings should inform contemporary interpretations. United States Native American legal scholar Robert Williams Jr. argues that the proclamation’s “two goals—facilitating the profitable Indian trade and protecting Indian lands to prevent costly hostilities—were viewed as complementary halves of a self-serving colonial policy put forward by mercantilist interests and their advocates in the British Ministry at Whitehall in the 1760s.” “Its discourse,” Williams continues, “was one of interest and expediency as articulated by armchair empire builders in the Old World, who viewed the honoring of promises made to savages in the New World as the cheapest, most ‘expedient’ means of containing both frontier defense costs and inland expansion by British American colonists.”¹⁹

Canadian First Nations legal scholar, John Borrows, reiterates Williams’ points about British intentions, but argues that interpretations of the Royal Proclamation limited to the words written in the document alone do not take into account the negotiations, gift-exchanges and other events that took place surrounding the production of the written text and recorded in First Nations oral traditions that reveal their intentions and interpretations. Ignoring the oral history of the Royal Proclamation, Borrows charges, “privileges one culture’s practice over another.” He goes on to argue that his inter-cultural interpretation of the Royal Proclamation suggests that “The Proclamation uncomfortably straddled the contradictory aspirations of the Crown and First Nations when its wording recognized Aboriginal rights to land by outlining a policy that was designed to extinguish these rights…. The different objectives that First Nations and the Crown had in the formulation of the principles surrounding the Proclamation is the reason for the different visions embedded within its text. Britain was attempting to secure territory and jurisdiction through the Proclamation, while First Nations were concerned with preserving their lands and sovereignty.”²⁰

1. Calvin’s Case 1608 cited in Walters 1993: 360.

2. For a thorough, and very readable, account of the application of terra nullius in Canada, see Richardson 1993.

3. For a comprehensive analysis of this argument see Asch and Macklem 1991. The authors conclude: “We believe it abhorrent that Canada was constituted in part by reliance on a belief in the inequality of peoples and that such a belief continues to inform political and legal practice in 1991” (510).

4. For a very thorough articulation of this argument see Derrida 1992. See also Hunt 1993; and Sayer 1987.

5. Aboriginal legal scholar James Youngblood Henderson, for example, explains that “Canadian law is not impersonal but racially biased; its legitimacy is threatened if not destroyed by its denial of order and freedom to Aboriginal people…” Henderson and Henderson 1985: 186.

6. See, for example, Hamilton and Sinclair (eds.) 1991; and Turpel 1991(c).

7. See Dyck 1991.

8. See Venne 1997; and Chamberlin 1997.

9. Dickason 1992.

10. Henry 1809 quoted in Jones 1982; and Slattery 1985: 119.

11. The phrase, “Imperialist Nostalgia,” is taken from Rosaldo 1989, who defines it as the yearning for that which one has destroyed.

12. Laslett (ed.) 1964.

13. Francis 1992; and Trouhillot 1991.

14. Tully 1993(b).

15. Tully 1993(c): 10.

16. There have been a number of published versions of the Royal Proclamation of 1763, and wording varies in different publications. The quotation cited here is taken from Chief Justice Allan McEachern’s 1991 Reasons for Judgment, in Delgamuukw v. R., 313.

17. For a survey of debates about both the historical context in which the Royal Proclamation was negotiated and the legal consequences for Canadian Aboriginal peoples in the present see Borrows 1992, 1997; Slattery 1991; Walters 1993. For analysis from a Native American (U.S.A.) perspective, see Williams, R. A. 1990(b).

18. The intended meaning of this language has also been hotly contested, with some arguing that the British Crown thereby recognized the sovereignty of Indian Nations, and others asserting that the words were used rhetorically or insincerely by the British to appease the Indians.

19. Williams, R. A. 1990: 237.

20. Borrows 1997: 160-161.